Andhra Pradesh High Court - Amravati
Molaka Gurusankar vs Basipalli Avula Narasimhulu 6 Others on 14 November, 2019
Author: C. Praveen Kumar
Bench: C. Praveen Kumar, J. Uma Devi
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
&
HON'BLE MS. JUSTICE J. UMA DEVI
Crl.A. No. 587 of 2013
JUDGMENT:- (per Hon'ble Sri Justice C. Praveen Kumar) This Criminal Appeal came to be filed assailing the judgment dated 07.03.2013 passed in S.C.No.657 of 2010 by the learned V Additional Sessions Judge (FTC), Kurnool, at Nandyal.
Originally, respondents 1 to 6 / Accused Nos.1 to 6 were tried on seven charges for the offences punishable under Sections 147, 148, 302 and 324 read with 149 IPC.
The substance of the charge levelled against the accused is that on 12.10.2009, at 04:30 P.M., while PWs.1 and 9 were laying platform in front of the house in Chennuri Bazar of Rudravaram village, a dispute arose wherein all the accused armed with stones, sticks, axe and pestle, assaulted them, and in pursuance of the same, they killed one Rangamma (deceased).
The facts as culled out from the evidence of the prosecution witnesses are as under:
PW1 is the son of the deceased. PW2 is nephew of PW1. PW3 is the brother of PW2. PWs.4 and 5 are related to PW1. There were disputes between the accused and the opposition party regarding an open place in front of the house of PW1. The accused did not pay heed to the words of Panchayat elders about the said place, as such, PW1
2 CPK,J & JUD,J Crl.A_587 of 2013 approached the Court regarding the dispute over the site and succeeded before the Court. In pursuance of the same, while PWs.3 and 9 were laying plat-form in front of PW1's house, A3 - G. Nandamma came there, dismantled the platform and sat there for sometime. During that time, PW1 was in clinic. As such, PW4, who is the daughter of his elder brother, and his mother came to him and informed about the incident. PW1 along with them came to his house and chastised A3 to go away from his house and also questioned as to why she sat near his house. Meanwhile, A1, A2, A4 to A6 came there armed with axe and raised cries to kill PW1. A1 beat PW3 with stick inflicting grievous injury on the nose and left ear. When the deceased interfered, A2 attacked the deceased with pestle. A1 also beat the deceased on chest with a boulder, as a result, she fell down and died on the spot. At that time, PW2 came towards the deceased raising cries stating that the deceased was killed. On hearing the cries, A3, A5 and A6 attacked the prosecution party with stones, as a result of which, PWs.1 and 2 received injuries on shoulder, nose and other parts of the body. Thereafter, PWs.1 to 3 went to the police station and lodged a report with Sub-Inspector of Police about the incident.
PW11 - Sub-Inspector of police received the report from PW1 on 12.10.2009 at 05:00 p.m., basing on which, he registered a case in Crime No. 132 of 2009 for the offences punishable under Sections 147, 148, 302 and 324 read with 3 CPK,J & JUD,J Crl.A_587 of 2013 149 IPC. Ex.P10 is the F.I.R. Immediately thereafter, he visited the scene of offence and assisted the Circle Inspector of Police. On 12.10.2009, further investigation was taken up by PW12, the Circle Inspector of police, who, on receipt of information, proceeded to the scene of offence, secured the presence of PW1, examined him and recorded his statement. As it was late in the night, he posted a guard at the scene of offence. On the next day i.e. 13.10.2009, he continued the investigation by holding inquest over the dead body of the deceased at 07:00 a.m. Ex.P2 is the inquest report. During inquest, he seized M.Os.2 to 4 and got prepared a rough sketch of the scene of offence, which is marked as Ex.P11. Thereafter, he sent the dead body for post-mortem examination to the Government Hospital at Allagadda through P.C.No.2721 of Rudravaram Police Station along with requisition. PW7 - Civil Assistant Surgeon at Community Health Centre, Allagadda, conducted autopsy over the dead body and issued Ex.P3 - post-mortem certificate basing on the final report issued, wherein he opined that the cause of the death of the deceased was due to neurogenic shock or sudden cardiac failure. He also opined that the injuries on the deceased were caused with a blunt object. On the same day, he arrested A2, A3, A5 and A6 and seized the pestle under Ex.P12. On 20.10.2019, he arrested A1 and A4 and sent them for remand. The evidence of PW7 - Sujata, the Doctor, discloses that on 12.10.2009, she examined PWs.1, 2 4 CPK,J & JUD,J Crl.A_587 of 2013 and 3 and issued Exs.P6, P7 and P8 - wound certificates. The injuries found on PWs.1 to 3 were found to be simple in nature.
PW13, the investigating officer, arrested A5 and after securing all the documents, particularly, date of birth certificate of A5, filed a charge sheet, which was taken on file as P.R.C.No. 50 of 2010 on the file of the Court of the Judicial Magistrate of First Class, Allagadda. On appearance, copies of the documents as required under Section 207 Cr.P.C., were furnished to the accused. Since the case is exclusively triable by the Court of Sessions, Kurnool, the same was committed to the Court of Sessions.
On appearance of the accused, charges as stated above came to be framed against the accused, read over and explained to them in Telugu, to which, they pleaded not guilty and claimed to be tried.
To substantiate its case, the prosecution examined PWs. 1 to 13 and got marked Exs.P1 to P15 and M.Os.1 to 4.
After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which, they denied. In support of their plea, the accused got examined DWs.1 to 3 and got marked Exs.D1 to D6.
Noticing the discrepancy in the evidence of PWs. 1 to 3 regarding shifting of the scene of offence, the learned V 5 CPK,J & JUD,J Crl.A_587 of 2013 Additional Sessions Judge (FTC), Kurnool at Nandyal, acquitted the accused. Challenging the same, PW5, who is the elder son of the deceased, preferred the present appeal against the accused.
When the matter was taken up for hearing on 17.10.2019, there was no representation for the appellant, and this Court, after hearing the learned counsel for respondent Nos.1 to 6, directed the matter to be listed on 23.10.2019 making it clear that if there is no representation on behalf of the appellant on that day, the mater would be adjudicated on merits. Even on 11.11.2019, when the matter was called, there was no representation for the appellant, as such, the matter was directed to be listed to day requesting the learned Public Prosecutor to assist the Court.
Heard the learned counsel for respondents 1 to 6 / A1 to A6 and perused the material on record.
The learned Public Prosecutor mainly submits that the evidence of PWs.1 to 3, who received injuries in the accident, would establish their presence and involvement of the accused in the crime. According to him, the presence of PWs.1 to 3 cannot be doubted in view of the injuries sustained by them on the spot, more so, when they were immediately sent to hospital for treatment. It is also to be noted that the presence of the accused also stands established at the scene of offence in view of the injuries 6 CPK,J & JUD,J Crl.A_587 of 2013 sustained by them. Having regard to the fact that the accused came there armed with deadly weapons, it can be safely inferred that they came there only with an intention to do away with the lives of PW1 and the deceased.
The learned counsel for the respondents-accused took us through the entire evidence and also the judgment of the trial Court to show that the findings recorded by the trial Court warrant no interference.
Now, the point that arises for consideration is;
"Whether the respondents perpetrated the murder of Rangamma, the mother of the appellant - PW5 for gain, if so, whether the acquittal of the respondents is illegal and liable to be set aside?"
The unnatural death of Rangamma is an undisputed fact since the evidence of P.Ws.1 to 3 coupled with the opinion of PWs.7, 9, 10 and Exs.P3 establish that the deceased was killed.
Adverting to the point formulated above, we would like to discuss the power of this Court to interfere with the acquittal recorded by the Trial Court in the appeal.
Code of Criminal Procedure makes no distinction between an appeal against the acquittal and an appeal against the conviction, but the High Court in appeal against acquittal would be justified in re-appreciating the evidence in order to determine whether the charge against the 7 CPK,J & JUD,J Crl.A_587 of 2013 accused was established by adducing satisfactory evidence. However, where no two views are reasonably possible in the matter, and view taken by the trial Judge was perverse and unsustainable, the High Court would be well within the limits of its power and would not transgress the self-imposed limitations of the powers of the High Court in interfering with an order of acquittal.
The Apex Court in S.Madhavan Nair v. State of Kerala1" laid down certain guidelines which are as follows:
"The High Court has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the view of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any real and reasonable doubt; and 1 AIR 1974 SC 1857
8 CPK,J & JUD,J Crl.A_587 of 2013 (4) the slowness of an appellate court disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses;
(5) the High Court should also take into account the reasons given by the court below in support of its order of acquittal and must express its reasons in the judgment which lead it to hold that the acquittal is not justified;
(6) further, if two conclusions can be based upon the evidence on record, the High Court should not disturb the finding of acquittal recorded by the Trial Court. It would follow as a corollary from that that if the view taken by the Trial Court in acquitting the accused is not unreasonable, the occasion for the reversal of that view would not arise."
Keeping in mind the law laid down by the Apex Court, we would like to advert to the scope of the exercise to be undertaken by the Court in an appeal. It is obligatory on the part of this Court to reappraise the entire evidence to come to an independent conclusion uninfluenced by the findings recorded by the Trial Court. Thus, it is the duty of this Court to re-appraise the entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e. appellant and the respondents/accused. Unless the Court finds manifest perversity in the judgment or where findings came to be recorded without evidence, normally, this Court would not interfere with such fact findings in appeal, while exercising jurisdiction under Section 372 Cr.P.C. It is the 9 CPK,J & JUD,J Crl.A_587 of 2013 sacrosanct duty of the appellate Court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat2). Though the above judgment relates to conviction, still the duty of the Court in an appeal against acquittal is the same, subject to the limitations prescribed in the judgments referred to above.
Before dealing with the evidence of PWs.1 to 3, it would be useful to refer to the evidence of PW10, who deposed that the accused present before the Court belong to his village and they also know the deceased - Rangamma and PWs.1 to 3. According to him, at about 04:00 p.m., on the date of the incident, A1 and A2 beat Rangamma. A1 beat on the back and chest due to which she died. According to him, PWs.1 to 3 also received injuries at that time. It is his case 2 (2013) 15 SCC 263 10 CPK,J & JUD,J Crl.A_587 of 2013 that he was taking tea at that time and after seeing the incident, he came to the scene of offence. In the cross- examination, it was elicited that on hearing the galata, PW10 came to the scene and saw A1 and A2 beating the deceased with pestle and boulder respectively. While so, the police came to see the scene and examined him. But strangely, his statement was not recorded by the police under Section 161 Cr.P.C. or at any time during the investigation. The investigation officer also does not speak anything about recording the statement of PW10.
Similarly, PW9, a mason, who was constructing plat-form, states that during the galata, the deceased was beaten to death by the accused who are present before the Court. According to him, on the date of the incident, while he was constructing basement, A3 - Galibili Nandamma interfered, pursuant to which, PW9 informed the deceased and her grand-daughter - PW4 to bring PW1. Hence, the deceased and PW4 went and brought PW1. While PW1 was pulling A3 holding her hand, a quarrel ensued between PWs.1 to 3 and the other accused, who returned from the agricultural fields. A1 and A2 beat Rangamma with pestle to which she succumbed to the injuries. According to PW9, PWs.1 to 3 also received injuries. However, it was elicited in the cross-examination of PW9 that the police also came after the galata wherein the deceased and PWs.1 to 3 were also present at the scene. A2, A3 and A6 also received injuries 11 CPK,J & JUD,J Crl.A_587 of 2013 and they were taken to the police station. From the evidence of PW9, it is to be noted that though the police came to the scene of offence, PW9 never disclosed about the incident nor the police made any efforts to examine him. Therefore, the trial Court rightly disbelieved the evidence of these two witnesses i.e. PWs.9 and 10.
PW1 is the son of the deceased. His evidence discloses the manner in which the alleged incident took place and also as to how the deceased and PWs.1 to 3 received injuries. He also speaks about going to the police station along with PWs.2 and 3 and lodging a report. However, in the cross- examination, it has been elicited that by the time he went to the police station to lodge a report, A2, A3 and A6 who also sustained injuries, were present in the police station. Therefore, the fact that A2, A3 and A6 received injuries as spoken by PW9 is true but his evidence does not show how and in what manner and in what circumstances, they received injuries. Having regard to the above, the version of the defence that by the time the quarrel took place, A1, A4 and A5 were living in the shed, cannot be brushed aside.
Insofar as the manner in which incident took place, the case of the prosecution is supported by the evidence of PWs.1 to 4. To test the veracity of the evidence of PWs.1 to 4, one may have to look into the evidence of PWs.11 and 12 who are the investigation officers in this case.
12 CPK,J & JUD,J Crl.A_587 of 2013 The evidence of PW11 would go to show that that he went to the scene of offence and saw dead body of the deceased lying at the scene. His evidence also shows that he posted a guard at the scene of offence as it was late in the night. PW12, who visited the site on the next day, found the dead body at a different place. Therefore, a doubt arises as to where the dead body was seen on the previous day as the deceased was shifted to a different place on the next day morning, more so, when a guard was posted at the scene.
Insofar as the seizure of the material objects is concerned, the evidence of PW12 is to the effect that M.O.1, which was used in the commission of offence, was seized on the next day after the arrest of the accused under Ex.P12. But as seen from Ex.P12, pestle was seized from a Beedi bunk of Peddapalli Chinna Dastagiri at the instance of A2, but the said Peddapalli Chinna Dastagiri was not examined to prove the same. Therefore, a doubt arises as to the seizure of the pestle used in the commission of offence at the instance of A2. No other weapons alleged to have been used and the blood-stained clothes if any, were seized.
It would be appropriate to extract the answers elicited in the cross-examination of PW12, the investigating officer. PW12, in chief examination, deposed that as per the report and the statement recorded under Section 161 Cr.P.C., A3 was not having any weapon in her hand. The complaint and the statement do not disclose specifically the weapons with 13 CPK,J & JUD,J Crl.A_587 of 2013 which A3 beat the deceased & PW1 and caused injuries to them. The material does not also disclose that by the time PWs.1, PW4 and the deceased came to the scene, the other accused assembled there. He further deposed that the deceased received injuries when she interfered while PW3 was beaten by A1 with country stick as per the report. The statement does not specifically reveal that A5 and A6 had sticks in their hands and were used by them. PW12 did not specifically enquire as to how PWs.1 to 3 and the deceased received more number of injuries than the injuries mentioned by them in their statements. PW12 further deposed in chief-examination that he did not seize any blood-stained weapons or a boulder at the scene as it was late in the night. PW12 deposed in chief-examination that he did not know whether at the time of remand, A2, A3 and A6 were sent to Allagadda Government hospital for medical examination and they informed the Magistrate that they received injuries in the hands of PWs.1 to 3. One other circumstance which requires to be noticed is that non-explanation of the injuries on A2, A3, A5 and A6. A2 and A3 were examined by DW2 who was working as Civil Assistant Surgeon in Government hospital. According to her, on 14.10.20109, Allagadda Police Constable produced A2 and A3 as they were referred to Allagadda Government Hospital. A2 was complaining of pain on left wrist joint and A3 was complaining of pain in right shoulder joint.
14 CPK,J & JUD,J Crl.A_587 of 2013 In the present case, the prosecution miserably failed to establish the seizure of pestle, other weapons alleged to have been used and the blood-stained clothes, and the non-explanation of the injuries on A2, A3, A5 and A6, but only established the unnatural death of the deceased, which by itself is not sufficient to interfere with the judgment supported by astounding reasons.
For the aforementioned discussion, we find no reason to interfere with the findings recorded by the trial Court. Hence, the judgment of acquittal delivered by the learned V Additional Sessions Judge (FTC), Kurnool at Nandyal in S.C. No. 657 of 2010 dated 07.03.2013 for the charged offences, is hereby confirmed.
In the result, the Criminal Appeal filed by PW5, who is the elder brother of PW1, under Section 372 Cr.P.C., is dismissed as devoid of merit.
As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
__________________ C. PRAVEEN KUMAR, J 14.11.2019 _______________ J. UMA DEVI, J bcj